GROUNDS OF JUDGMENT

The winding-up petition was presented on 3 grounds under s. 218(1)(e), (f) and (i) of the Companies Act 1965 . The petition was resisted on a number of grounds. After hearing of submissions of counsel of both parties, the court reserved judgment. On 2.10.2009 the court struck out the petition with costs on the following grounds:-

Service of Petition bad in law

(1) The registered office of the respondent company was changed to 41-3-4, Tingkat 3, Wisma Prudential, Jalan Cantonment, Penang with effect from 27.3.2002. The Form 44 notifying the SSM of the change of address (exhibit TPY-17, encl. 39) was lodged on 29.3.2002. The SSM search on the respondent (exhibit TPY-5, encl. 49) confirms the change in the registered office.

(2) The petition was served on the respondent at No. 157A, Jalan Sri Pelangi, Taman Pelangi, Johor Bahru on 10.4.2002.

(3) The change of registered office takes effect from the date of notification to the SSM (UMBC v. Richland Trade & Development Sdn Bhd[1999] 1 MLRA 618; [2000] 1 MLJ 385; [2000] 1 CLJ 57; [2000] 1 AMR 105 FC; ; [1985] CLJ (Rep) 304; [1983] 1 CLJ 70 ; [1985] 1 MLJ 68 SC; s. 120 Companies Act 1965 ).

Rule 25 of the Companies (Winding Up) Rules 1972 prescribes that a petition must be served on the company at the registered office. In this instance service of the petition is bad in law for in breach of rule 25 .

Rule 25 is mandatory in nature. It is not a mere procedural requirement. The principal objective and basis of service of any process, especially any originating process like a petition or writ of summons, is to give notice to an affected party so that they will become aware of and may, if they wish, to resist the proceedings instituted against them. This is a fundamental right which is recognised and accorded primacy in rule 25 . In that light, the mandatory requirements under rule 25 must be strictly enforced (; [2009] 4 MLJ 149; [2009] 4 CLJ 329 FC ).

The cases cited by the petitioner are distinguishable on the facts and the law. In ; [2001] 5 CLJ 585 ; [2001] 5 MLJ 379, the statutory demand was served on a clerk at the respondent company's business address and not at the registered office as required under s. 218(2)(a) of the Companies Act 1965 . In ; [2000] 5 MLJ 708 the respondent exhibited a return pursuant to s. 165 of the Act to evidence a change of registered address; it was not a Form 44 notice and cannot be accepted as a notice of change of registered address. In that case the respondent also admitted in their affidavit that they have in fact received the petition.

As the service of the petition on the respondent is bad, it follows that the proceedings have not been properly brought. The petition is therefore incompetent and must be struck out with costs.